Discrimination: in Black and White


How does one concise into a bite-size article the imminent iceberg of anti-discrimination law (or to give it its official title, the Discrimination (Jersey) Law 2013) that is to become part of the everyday landscape of Jersey? Why even care, in fact? Well, it goes something like this.

First, says the States of Jersey, all those value judgements we each, rightly or wrongly, make about another’s race, sex, disability and age which inform our decision-making can continue at home, but not in the workplace (or in educational institutions, the provision of housing and the provision of goods and services). The States do not expect to re-program any fossilized Island behaviour overnight (after all, the mainland has been plying such law for 40 years plus); no, the States propose to effect its law in piecemeal stages, starting from September 2014 with race discrimination. The rest will follow.

So what exactly is prohibited? Well, what isn’t? If one truly wants to counter discriminatory treatment, one has to cast the net wide to capture the covert as well as the overt, the seemingly innocuous as well as downright flagrant campaigns. In the employment field, for example, protection starts before the employment relationship has begun and prevails after it finishes. Protection extends to: prospective and former employees, agency workers, self-employed consultants and volunteers. Aggrieved workers can sue their discriminators in person as well as their actual employing entity, and that includes those who issued a discriminatory instruction as well as those who carried out that instruction. Thus, for the first time employees themselves can be personally liable for their acts and omissions, and branded racist. Conversely, employers can be vicariously fixed with liability created by their staff (or, indeed, third parties), and also declared racist – which does not exactly make for great recruitment, retention or corporate reputation.

The actual legal definitions of discrimination are four-fold: direct discrimination, indirect discrimination, victimisation and harassment. The nuances vary but the key to understanding discrimination is to distinguish unfavourable treatment (treating employees badly) from less favourable treatment (treating some employees better than others on the grounds of their race). If an employer treats its any employee unfavourably, it will not be a discriminator. If it treats any employee less favourably, it will be.

As it’s early days, remedies for well-founded claims (decided by the newly constituted Jersey Employment and Discrimination Tribunal) include compensation for victims of up to £10,000 – an amount that broadly accords to the (mean) average awarded in discrimination cases in the mainland. Lest such amount strikes you as inconsequential, be advised the law expressly provides for a review of the same.

That said, racism, or indeed discrimination per se, in Jersey is, necessarily, undocumented. The number of cases of sex discrimination in Guernsey (which has been in force for almost a decade) is, arguably, negligible. Overall, therefore, the scope for the law’s bite is a moot point. Cynics of the law argue its introduction is essentially political; introduced not to make good suspected discriminatory treatment of foreigners, women, homosexuals, ‘trans*’ people, the disabled, the old or young, but to safeguard the jurisdiction’s financial industry’s need to be, and be seen to be, compliant with Jersey’s international legal obligations. Early indications at ‘shop floor’ level across all industrial sectors, however, vary, and suggest that employers will, at the very least, need to audit their workplace profile and practices, roll-out some equal opportunity training, curb employee banter, and mitigate risk by supporting victims and disciplining offenders. After all, no-one wants the notorious accolade of being the first to be prosecuted.

For more information about the new law in Jersey, telephone us on 01534 887088.

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